going to court, please help!!!!!!!!!!!!!!!!!

[annette38]

hi, im very new at this, i think i cocked up when filling in my court claim, i just stated i was claiming back my bank charges, then put tin the amount, i had missed the actual thing to put in there.

the bank, woolwich/barclays. have made a defence, and have said that i havent stated my case correctly and im waisting the courts time and resorces. and a lot of other crap which is over my head. and it shouldnt go to court, but it is. ive just got my form to fill in and have to send it back back 2/1/07.

can anyone help me with this. and what do i need to do now to win my case. this is scarey stuff for me.

my mobile is ---- if anyone can help me .

any solicitors reading this please help.

annette:eek:

[e28bigalbexley]

Hi annette

Can you post the defence on here it will be easier to help that way also try to itemise the steps you took to get where you are now.

Have you kept copies of the Shedules and letters you have sent the bank?

Try not to panic (easier said than done i know)There is still time to sort this out.

Finally do not post your personal info online, you never know whos looking:eek:

I will try to get a mod to remove it before you are back on line.

 

AL

[annette38]

thanks for your help,

these are the steps i took,

1) requested my bank statements with template on this site.

2)got statements and £10 payment for them

3)send second letter template requesting my refund.

4) got standard letter from bank, saying no.

5)send 3rd letter before action

6)got offered half of my money back £700 as a good will gesture

7)send template letter refusing money,

8) started my claim online,(wasnt sure what to put on my claim, as i couldnt find the right template)

9)got court letter saying they had filed my claim.

10) got letter this week saying the bank woolwich/barclays had file a defence.

 

this is thier defence

1. the particulars of claim give no recognisable cause of action, nor is there sufficient material to enable barclays to serve more than a bare denial of liability as a defence. the stament of case would appear to be an abuse of process and/or will obstruct the just disposal of the proceeings and it does not appear to comply with CPR r16.2.

2. the defendent respectfully requests an order that the claim be struck out pursuent to CPR r3.4 as it does not disclose reasonable grounds for bringing a claim and is an abuse of the court?s process. it also does not appear to comly with CPR r16.2.

3. if an order to strike out is not concidered to be appropriate, to the extent it is alleged that the claiment incurred bank charges on his account for unauthorised borrowings (whether unpaid fees for returned cheques, 'paid referral fees' or any other such fees), the defendant puts the claiment to strict proof of each charge and the date thereof.

4. the defendant is entitled to charge the claiment for unauthorised borrowings by reason of its standard terms and conditions. the charges constitute payments the claiment agreed to make by reason of the terms and conditions of her account and were consideration for the defendant advancing credit to the claiment, which the defendant wasnder no obligation to advance, the defendant was entitled to impose such charges and interest when the claiment incurred the overdraft, the claiment accepted the same when the account was opened.

5. the standard terms and conditions included (in particular but without limitation)the following terms and conditions(which are summerised);

a. the defendant?s right to charge administrative costs if any cheque, standing order or direct debit cannot be paid because of lack of funds in the account-£30 per item( previously £27.50).

b. The defendant?s right to charge administrative costs if the defendant was compelled to pay any items which caused the account to be over drawn-£30 per item (previously £27.50).

c. the defendant?s right to charge unauthorised overdraft fees - £3 per day.

d. the defendant/s entitlement to refuse any debit transaction or debit card transaction where there were insufficient cleared funds in the account and to debit from the claiments account any charges, interest or other money which became payable by the claiment to the defendant in relation to the account.

e. the defendants entitlement, if a cheque or other item paid to the account was returned unpaid, to debit the account with the amount of that item together with any interest paid by the defendant on it.

6. the defendants standard terms and conditions give the claiment a fair and transparent view of those terms and conditions and the charges applicable for unauthorised borrowings (including where the claiment exceeds her authorised overdraft limit).

7. if and to the extent it is the claiments case that the failure to make necessary payments and/or failure to remain within authorised overdraft limits constituted a breach of the terms applying to the account and that the contractual entitlement to debit charges from the claiments account constitutes a liquidated damages clause, the same is denied.p aragraph 3 above is repeated.

8. the existence of the schedule referred to in the particulars of the claim is admitted. the claiment is required to proove the set charges set out therein,

9. for the reasons set out above, it is denied that the legal principles relating to liquidated damages clauses and penalty charges or applicable to thefacts set out above. further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the unfair terms in consumer contracts regulations, or are in breach of the unfair (contracts) terms act 1977.

it is further denied that any such charges unduly enrich the defendant.

10. therefor, it is denied that the charges were unlawfully debited from the account.

11. if and to the extent the claiment incurred charges on his account, this was caused by the claiment having gone into overdreft without heving agreed with the defendant to increase the overdraft facility and/or his failure to make payments to bring the balance back into credit or back within the authorised overdraft limit.

12. it is averred that the said charges and interest are and remain lawful and enforceable and that the defendant was entitled to debit the same. accourdingly, the claiment is not entitled to a declaration by the court as to the enforceability of the said charges whether as pleaded at paragraph 5b or at all.

13.the defendant denies that it is liable to the claiment for sums claimed and interest pleaded by the claiment in paragraph 5 or at all.

14.in the alternative, and without prejudice to paragraph 9 above, (which isdenied)the said charges and interest or any part thereof are inlawful or unenforceable as alleged by the claiment or at all, the defendant has nonetheless suffered loss and and damge as a consequence of the claiments breach of contract in allowing the account to go into unauthorised overdraft,

accourdingly, in the event that the defendant is unable to rely on its express entitlement to enforce the charges as set out at paragraph 3 to 5 and 11 above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and the defendant seeks to set off such sums against any liability owed hereunder to the claiment.

15.the defendant denies that it is liable to the claimant for the sums claimed and interest as plaeded by the claimant or at all. in the alternative, which is denied, if the said charges amount to the sums payable on breach of contract, it is averred that the charges asserted by the claimant to havr been applied to the account prior to 10 november 2000 would not be recoverable for reason of exhaustion of time in bringing contractual claims from the date of accrual, persuant to the limitation act 1980.

 

 

 

in my claim, as i wasnt sure what to write, i just said that the woolwich has levied inapropriate bank charges onto my account 9with the amount charged) and i wish to claim this back with interest,

 

 

can any one make any sence out of all this leagle crap, and what do i have to do now to state my case properly, is it to late,? i have my form to return to court, i need help filling it in.

[e28bigalbexley]

Hi Annette

 

Thanks for posting that, Now the way you followed the steps looks fine,(did you send a shedule of charges with you prelim, LBA, and when you sent your MCOL, 3 copies to the court at Northampton with you claim number on, and as a curtusey a copy to the wollywich (stops them winging)).

Now you said you could'nt find the template for the MCOL so what did you put in your Particulars of claim(POC) did you for instance state....

UTCCR 1999

UCTA 1977

common law

which is the basis of your claim.

Any way im going to look at their defence and if i cant help i know someone who can;)

 

Chin up:)

[e28bigalbexley]

Ok Anette apart from no's 1,2 and 3 their defence looks pretty standard nothing to worry about am trying to find out about the the first 3.

Dont worry im sure it will be sorted shortly.

 

AL

[annette38]

i sent them a shedule of charges, but havent sent one to the court in northampton, as the court letter i got yesterday says its has been moved to my court in bournemouth.

when i did my online claim, i said that i was claiming disappropriate bank charges levied onto my account by woolwich and interest incurred.

with the amounts. im not a solicitor, and didnt know what else to put. i have a form here to send to the court, which im having trouble with, do i send in the court bundle and the shedule with it?

[annette38]

al, thanks for all your help, im off to my mums tomorrow, so wont get back online till i get to my brothers on boxing day. his girl freind is a leagle secratery, so will get her to help with the form,and will see if you have any help on here too before i post the form off. it has to reach the court by 2/1/07

merry christmas annette

[e28bigalbexley]

Hi Annette,

Is the form you have a Allocation Questionaire? (Has it got form 149 or form 150 on it) because i think you will be able to include what you have missed off the MCOL:)

Ok i'll find out what i can for you just enjoy yourself im sure things will be ok , have a nice time at your mums and happy Xmas to you and yours.

 

AL;)

[Dellean]

I have a similar question as annette38. Does one send Court Bundle with Allocation Questionnaire? Dellean

[traceyrmj]

no court bundle will be asked for later on

[Dellean]

no court bundle will be asked for later on

 

Thank you traceyrmj

[tamadus]

Hi Annette,

 

Al asked me to take a look at your thread.

 

There is nothing new whatsoever in their defence. The only problem comes because you obviously haven't used the standard Particulars of Claim when you filed on Moneyclaim. This sets out the points of law that your claim depends on, consequently they are challenging it in paragraphs 1-3.

 

I assume the form you have now is an Allocation Questionnaire (N149 or N150) I am sure that you can put the exact details of your claim on that, but check with your local court as they may need to to submit an amendment to your claim which will cost £35 and is not reclaimable.

 

Your POC should have read something along these lines:

 

Claimant had an account XXXXXXX with

Defendant from approximately XX/XX/XXXX to

XX/XX/XXXX conducted on their

standard terms and conditions. Claimant is

claiming the return of £XX.XX taken by

Defendant in charges and interest between XX/XX/XXXX

And XX/XX/XXXX

The Defendant's charges are a

disproportionate penalty and therefore

unenforceable as they are contrary to

common law. They are also invalid under the

Unfair Contracts Terms Act 1977 s.4 and

under the Unfair Terms in Consumer

Contracts Regulations 1999.Para.8

and sch.2.1.e. In the event that the

charges are not a penalty they are

unreasonable within the meaning of the

Supply of Goods and Services Act 1982 s.15.

Defendant has declined justification of

charges despite repeated requests.

Claimant claims interest under

Sec.69 of the County Courts Act 1984 at a

rate of 8% a year from XX/XX/XXXX to

XX.XX.XXXX of £XX.XX and also

interest at same rate up to the date of

judgment or earlier payment at a daily rate

of £XX.XXp.

 

Also when you return the AQ include a copy of your schedule of charges.

 

Hope this helps.

[tamadus]

How old is the earliest charge Annette ? I notice they are invoking the statute of limitations in paragraph 15.

[MadMat]

How old is the earliest charge Annette ? I notice they are invoking the statute of limitations in paragraph 15.

 

That seems to be standard wording with the Barclays defence, they invoke the statute of limitations on the defence they sent me too, despite my oldest charge being Feb 2001

 

Mat

[annette38]

the first charge was for 2001, i have done the allocation questionair today and filed it with the court, i includedthe right things as above, and filled in an exemption form so i didnt have to pay the court fee, as im on benefits, it felt good, fingers crossed i get my money back.

happy new year every one.

annette x

[e28bigalbexley]

Hi Annette and Happy New Year:D

Great glad to hear your getting sorted now just keep in touch and let us know of any developments. And yes it will be a very good year;)

 

 

AL:)

[Dellean]

Help from anyone please. I started my claim long before I discovered this helpful site. All has been well until now. I got an order from the court today to amend or substitute my POC in plain English? Can somebody please read my POC below and point out where my mistake is or what they mean by plain English please.

 

PARTICULARS OF CLAIM

 

1. The Claimant has a current account (“the Account”) with The Woolwich (The Defendant), which was opened in around 1990.

 

2. In 1998 Claimant had to give up employment to start hospital treatment due to an earlier diagnosis in 1994 that unexpectedly had worsened. Claimant applied for her Overdraft facilities to be increased in order to avoid bank charges informing the Defendant of having to give up work because of treatment in hospital.

 

3. During this period the Defendant debited numerous charges to the Account in respect of alleged breaches of contract on the Claimant’s part. Interest was also charged once charges were debited.

 

4. A list of these charges applied is attached to these particulars.

 

5. The Claimant argues that:

 

a. the charges debited to the Account are unfair especially as she tried to avoid the charges in the first place

 

b. that these charges are pre-estimated and not the true to costs incurred by the Defendant

 

c. that the charges exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant

 

d. the charges are not intended to represent or related to any alleged actual loss but to enrich the Defendant, which exercises the contractual term in respect of such charges with a view to profit.

 

e. the contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

6. Accordingly the Claimant claims:

 

a. the return of the amounts debited from January 2000 to date in respect of charges in the sum of £4332.76 and any interest thereon

 

I believe that these particulars of claim are true.

………………………

Signature

………………………

Date

Please help me I have not got long or my claim will be struck out.

[tamadus]

Dellean,

 

First you will be better starting a thread of your own in the woolwich/Barclays forum as help can be directed better to you.

 

Reading your POC I think the court are being nice in asking you to change it

 

what they want is something similar to my post above, they are not really interested in the fact that you had to give up work because of illness, as important as it is to you.

 

They want the relevent facts as they pertain to your claim and they only want that. You have clouded the POC with side issues.

 

Was this a paper claim you made ? ie. did you fill out form N1 and return it to the court ?

 

Please try using the format I posted above and replace the X's with the relevent details of your claim. Hopefully that should then suffice

[Dellean]

Thanks tamadus, much appreciated. I started a thread at about November when I first joined then the system was updated and I got confused. I am not au fait with computers and I did not know I should start a new thread? I am very grateful for your help. I will now update POC and take it to the Court. Dellean

[annette38]

hi all, after a months wait, i have now got my court date 2pm 16 april.

the court want me too send in any documents reavent to the case, what are they?

i have to have them in by 16th feb

annette

[GSMGuy]

Annette, they prob mean your court bundle - Ie list of charges and case law pertaining to your claim - There is a template somewhere for it, as I used it to do my bundle...

 

Mike

[Dellean]

hi all, after a months wait, i have now got my court date 2pm 16 april.

the court want me too send in any documents reavent to the case, what are they?

i have to have them in by 16th feb

annette

 

Hi Annette, I have not got a court date. I am going away till 2nd week in March. I would get a bundle together. Don't forget to have an extra copy. Good luck.

[e28bigalbexley]

hi all, after a months wait, i have now got my court date 2pm 16 april.

the court want me too send in any documents reavent to the case, what are they?

i have to have them in by 16th feb

annette

 

 

Hi Annette,

Heres what you want

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

Just follow the instuctions at the start;)

 

 

AL

[tamadus]

Annette do you have a thread of your own ?

 

If not please start one in the appropriate forum and post some details of your claim please. It's almost impossible to offer any advice or guidance without some details.

 

Also Dellean wont want you jumping into her thread and posting off topic.

[e28bigalbexley]

Dave

it is Annettes thread:o